The facts in this case are not in dispute. The plaintiff-employee terminated her employment with the Bridgeport board of education on June 26, 1971. Boards of education became *Page 124 covered under the Unemployment Compensation Act on July 1, 1971, pursuant to Public Acts 1971, No. 835. General Statutes § 31-222. After first awarding benefits to the plaintiff, the administrator later notified her that she was ineligible for such benefits and might have to repay the amounts paid to her. The plaintiff appealed this decision of the administrator to the commissioner, who upheld the administrator's decision to the effect that the plaintiff was not eligible for benefits. The commissioner, however, also ruled that § 31-243 of the General Statutes was applicable to this situation and that the plaintiff did not have to repay the benefits already received because she was not at fault. The administrator has appealed only that part of the commissioner's decision which holds that the plaintiff need not repay the benefits.
In Cicala v. Administrator, 161 Conn. 362, 368, the court said: "Sections 31-243 and 31-273 (b) [of the General Statutes1] are not in conflict. Section31-243 is concerned with a modification of the administrator's original decision on the ground of a change in conditions occurring within six months after that decision was made and specifically prohibits *Page 125 any retroactive effect as to benefits previously paid. Section 31-273 (b) empowers the administrator to act to preserve and secure the financial stability of the unemployment compensation fund by setting aside a payment of benefits to a person found disqualified or otherwise not entitled to such benefits and ordering a reimbursement of the fund as he did in this case." (Emphasis added.)
Although § 31-243 was amended subsequent to theCicala decision, supra, the amendments have in no way eroded the efficacy of that decision to this situation. See Public Acts 1971, No. 835 § 24. The commissioner refers to the "free from fault" language added by the amendment and, in effect, has concluded that such language liberalizes this statute. Actually, the amendment does just the opposite. Before this change, the statute, where applicable, would protect a claimant from having to repay any benefits even if he were at fault in any way. This is because there was no restrictive language whatsoever in the statute. By the amendment to the statute, a claimant can no longer keep such payments if he is at fault in any way. By amending § 31-243 in this way, therefore, the legislature intended to *Page 126 restrict the application of those provisions of § 31-243 pertaining to the retention of benefits to only those claimants who are free from fault. Further, by amending § 31-243 to include a specific reference to § 31-273, the legislature intended to continue the applicability of § 31-273 (b) to cases such as this.
The fact that benefits were mistakenly awarded the plaintiff cannot give her vested rights in something to which she was never entitled. An honest mistake by a government employee cannot restrain the administrator from doing his statutory duty. The provisions of § 31-273 (b), as already pointed out, were enacted to cover, inter alia, just this situation. The commissioner was obviously motivated by well-earned sympathy in this case, but sympathy cannot be the foundation of a judicial decision.
For the foregoing reasons, that part of the commissioner's decision concerning repayment of benefits is reversed because it is illegal. The administrator's appeal is sustained.